' MUHAMMAD KHALID MEHMOOD KHAN, J.---This civil revision has been preferred against judgment and decree dated 21-5-1991 passed by learned Additional District Sheikhupura, whereby he set aside the judgment and decree dated 15-12-1990 passed by the learned trial Court.
2. Briefly stated the facts of the case that respondent/plaintiff Muhammad Din filed a suit for declaration with consequential relief against petitioner praying that he purchased land measuring 54 Kanals, 7 Marlas detailed in para 1 of the plaint from one Sardar son of Heera and Mutation No,1075 was attested in his favour on 20-5-1967. The petitioner/defendant filed a suit for declaration against him before civil court at Sheikhupura and obtained ex parte decree on 8-9- 1977. However the said decree was set aside on 25-7-1979.. But the petitioner/defendant on the basis of ex parte decree got attested Mutation No,300 on 18-9-1977. The petitioner/defendant on 1- 7-1971 also arranged the registration of sale deed of the same land in his favour from Sardar and on 24-11-1979 got attested another Mutation No,350/1. The respondent/plaintiff prayed that both Mutation No,300 and Mutation No,350/1 and sale deed dated 1-7-1971 be declared illegal, against law and facts, collusive, void and ineffective against his rights with consequential relief and that he is the owner in possession of suit land and petitioner/defendant be permanently restrained to sell, mortgage, gift or alienate the suit land.
3. The petitioner/defendant resisted the suit and raised different preliminary as well as factual objections as to cause of action, maintainability, non-payment of court-fee, estoppel and limitation. He alleged that respondent/plaintiff is not the owner in possession of the suit property, he purchased suit land vide mutation of Sale No,1075, the said sale was challenged by one Munawar Hussain son of Muhammad Shafi alleging that Mutation No,1075 is hit by Martial Law Regulation, 1964 (MLR 64) as the vendor Sardar was owner of 91 Kanals, 19 Marlas and out of this land sale of 54 Kanals, 7 Marlas is illegal. The Mutation No, 1075 was set aside by the Collector Saddar Sub-Division Sheikhupura vide his order dated 14-5-1971, the respondent/plaintiff challenged the cancellation order through an appeal which was allowed vide order dated 24-2- 1972 subject to the condition that respondent will construct rice Mills on suit land within six months, the respondent failed to construct and install the rice Mills and as such order dated 14-5-1971 passed by the Collector Saddar Sub-Division Sheikhupura for cancellation of Mutation No,1075 stands restored and he become the absolute owner of the suit land by virtue of sale deed dated 1- 7-1971.
' Out of pleadings of the parties the learned Civil Court framed the following issues:-- ISSUES
(1) Whether the plaintiff has no cause of action? OPD
(2) Whether the suit is not maintainable in its present form? OPD
(3) Whether the suit has been incorrectly valued for the purposes of court-fee and jurisdiction if so what is the correct valuation and its effect? OPD
(4) Whether the plaintiff is estopped to file the suit by his own words and conduct? OPD
(5) Whether the court lacks jurisdiction to try the suit? OPD
(6) Whether the suit is hit by principle of res judicata? OPD (7). Whether Mutation No,300 dated 18-9-1977 and sale-deed dated 1-7-1971 and the Mutation No,350/1 dated 24-11-1979. And the entries in the revenue record are illegal, without authority, void and ineffective on the rights of the plaintiff? OPP.
(8) Whether the plaintiff is owner in possession of the suit-land? OPP
(9) Whether the suit is vexatious and the defendant is entitled to special costs ? OPD (9-A) Whether the suit is time barred? OPD
(10) Relief.
5. Both the parties adduced their respective evidence verbal and documentary. The learned Civil Court after hearing the parties dismissed the suit vide judgment and decree dated 15-12-1990. The respondent/ plaintiff assailed the judgment and decree, which was allowed on 21-5-1991, hence, the present revision petition.
6. Learned counsel for the petitioner submits that learned appeal court has exercised the jurisdiction which was not vested in it and the impugned judgment is outcome of material irregularity and illegality, the learned appeal court has misread the evidence and the impugned judgment suffers from misreading and non-reading of record, the learned appeal court has failed to appreciate that at the time of institution of the suit the respondent/plaintiff was not in possession of the suit land as such the suit for simple declaration without possession was not maintainable, he further submits that the learned appeal court has erred in law while deciding that Mutation No,300 sale-deed dated 1-7-1971 and Mutation No, 350/1 dated 24-11-1979 are without any lawful authority, the sale-deed was never challenged by the respondent/plaintiff through a civil suit and the same is still in operation, adds that the learned appeal court has failed to consider that order of Additional Commissioner was conditional and on the failure of respondent/plaintiff to construct the Rice Mills within 6 months, order dated 14-5-1971 stand restored. The impugned judgment is vague, whimsical and based on assumptions. The learned trial court has failed to consider the most important aspect of case that sale in favour of respondent/plaintiff is hit by MLR 64 and was void ab initio. Lastly he adds that the learned appeal court has failed to appreciate that petitioner/defendant has purchased the suit land through registered sale and the mutation in his favour was attested on the basis of sale deed.
7. Learned counsel for the respondent/plaintiff supports the impugned judgment and decree claiming that revenue authorities have no jurisdiction to decide the question arising due to alleged violation of MLR 64, it is the Land Commission who alone has the power to ascertain the legality of Martial Law Regulation 1964. He submits that learned appeal court has rightly held that Mutations Nos. 300 and 350/1 are illegal, void and without lawful authority.
8. Heard. Record perused.
9. Certain facts between the parties are admitted as to that respondent/plaintiff had purchased the suit land from one Sardar son of Heera and Mutation No,1075 was attested in his favour on 20- 5-1967. One Munawar Hussain challenged the sale of respondent/plaintiff and obtained an ex parte decree on 8-9-1977, the said decree was set aside on 25-7-1979 and case was remanded to Civil Court for deciding afresh but on 17-1-1982 the petitioner's suit was dismissed as withdrawn and as such Mutation No,300 attested on the basis of ex parte decree stands removed from the Revenue Record. The sale deed dated 27-5-1978 executed by Sardar son of Heera in favour of Altaf Hussain shows that, fact of earlier sale in favour of petitioner/defendant find mention in the sale deed. It is an admitted fact that Mutation No,1075 attested in favour of respondent/plaintiff was set aside by the Assistant Collector on the ground that sale is in contravention of MLR 64 but the Additional Commissioner set aside the order of Assistant Commissioner on 24-10-1972 with the condition that respondent will construct a Rice Factory on the land, It was also held by the Additional Commissioner that suit land was required to the respondent/plaintiff for construction of a factory and as such MLR 64 does not prohibit the said sale.
10. From the above said facts the factual position emerges is that respondent purchased the suit land in the year 1967 from one Sardar. One Munawar Hussain Advocate the real brother of petitioner moved an application to the Assistant Collector alleging that sale in favour of respondent/plaintiff is hit by MLR 64. Mutation No,300 was attested in favour of petitioner/defendant which became ineffective and non-existent when he finally withdrew his suit on 17-1-1982. The sale-deed dated 1-9-1971 was executed in those days when Mutation No,1075 was set aside being violative of MLR 64 but the seller Sardar mentioned in the sale-deed, the fact of earlier sale in favour of respondent/plaintiff. The Mutation No,350/1 was attested in favour of petitioner/defendant on the basis of sale-deed dated 1-9-1971. The order of Additional Commissioner (Revenue) dated 24-2-1972 shows that order dated 14-5-1971 was set aside and it was held that respondent/plaintiff purchased the suit land for construction of a Rice Factory and sale in his favour is not hit by MLR 64 provided he shall construct the Rice Factory on it within six months.
11. In view of the above said facts the controversy between the parties shrinked to one question only i,e, the sale in favour of respondent/ plaintiff by Sardar is hit by MLR 64 or not? The learned appeal court discussed the evidence adduced by the parties and concluded that the sale in favour of respondent/plaintiff was not hit by MLR 64 and passed a decree in favour of respondent/plaintiff as prayed for.
12. Argument of learned counsel for the petitioner is that basic sale in favour of respondent/plaintiff was hit by MLR 64 as it was less than subsisting holding, his argument finds strength from the order dated 24-2-1971 of Additional Commissioner (Revenue) Lahore -Division Lahore which was not complied with and the order of. Assistant Collector dated 14-5-1971 attained finality. His second argument is that the suit for declaration without seeking the possession was not maintainable. No declaration can be allowed when the possession is not sought for. He relied on Sher Zaman v.
Muhammad Ishaque and others PLD 1985 SC 144. In this case the dispute was whether the controversy regarding MLR 1964 is within the jurisdiction of Land Commissioner or Civil Court and the honourable Supreme Court has decided that the Commission will be competent to determine the dispute, but the jurisdiction of Civil Court under section 9 is also not barred. However, the preference should be given to the Land Commission. He also relied on Nisar Ahmed Khan v. Mst.
Ismat Jahan Begum 1968 SCM R 667 for substantiating his contention. In this case, the husband transferred land measuring 280 Kanals in favour of his wife in lieu of her dower and the question arose whether the Civil Court has jurisdiction to decide the objection as to the validity of dower deed, based on MLR 64, it was held in the light of paragraphs 3,4 and 27 read with para 25 of the Regulation the question whether para 25 invalidates the transaction or not is one falling within the exclusive jurisdiction of the Land Commission or the Chief Land Commissioner who are charged with the duty of implementing the provisions of the Regulation. The Revenue Authorities may refuse to implement the order if they came to the conclusion that the transaction is hit by MLR 64 but the final authority to adjudicate the same will remain with the Land Commission and the Commission in this type of controversy get assistance from the civil court to decide the dispute. The provision of regulation would however, make the Commission the final Judge of any controversy despite reference of a matter to the Civil Court no decree of a Civil Court as such will be binding on Revenue authorities unless it is accepted by the Commission. He also relied on Haji Makhdoom Ali and others v. Noor Samad PLD 1885 Rev. 237 . In this case the Federal Land Commission held any alienation of land in violation of para 24 of the Land Reforms Regulation being ab initio void. In this case the matter was directly dealt by the Federal Commission about the violation of MLR 64.
13. In the case in hand the Assistant Commissioner and Additional Commissioner were not acting as a Land Commissioner. Their action was under the Land Revenue Act because they were hearing the complaint and appeal as Assistant Collector and Collector under the Land Revenue Act. It is the Assistant Collector in this case who decided that the sale in favour of respondent/plaintiff is hit by MLR 64, hence, the judgments relied upon by the learned counsel for the petitioner are not supportive of his argument. The argument of learned counsel for the petitioner/defendant that the suit for declaration Without seeking possession is not maintainable is not convincing and fulfil the legal parameters in this behalf. It is established principle of law that a declaratory suit on the basis of title cannot be dismissed on the ground A that the plaintiff is not in possession of the disputed property and the proper course in such a situation will be to allow the plaintiff to amend the plaint and to ask for possession.
14. Under section 52 of Specific Relief Act the court has no power to dismiss the suit where the plaintiff being able to seek further relief omits to do so, if the court comes to the conclusion that the declaratory decree without possession cannot be passed, it is the duty of the court to allow the plaintiff to amend the suit.
15. In reply to the first argument of learned counsel of petitioner, the argument of learned counsel for the respondent is that any violation of MLR 64 is only cognizable by the Land Commission alone.
The dispute about the violation of MLR 64 cannot be determined by the Revenue Authorities or even the Civil court. If the Revenue Authorities come across a dispute about the violation of MLR 64 the said Revenue Officer is bound to refer the matter to the Land Commission instead of deciding himself. The Land Commissioner or Deputy Land Commissioner are alone authorized Officers under MLR 64 and the Revenue Officer has no power and authority to declare any transaction being violative of Martial Law Regulation. Learned counsel for the respondent has relied on Muhammad Ashfaq v. Muhammad Shafique and others 2007 SCM R 1773, Bashir Ahmed v. Messrs. Muhammad Salim, Muhammad Siddique and others 2008 SCM R 1272 and Mst. Aisha Bibi v. Nazeer Ahmed and others 1994 SCM R 1935. In these cases it was held. "all orders passed by the hierarchy of officers under the Land Revenue Act are without jurisdiction inasmuch as, the power to declare any transaction as offending the provisions of MLR 64 vested in the Land Commission or the Land Commissioners appointed thereunder and the jurisdiction of Civil Courts as well as the other Tribunals/Authorities were expressly excluded."
16. The judgments relied upon by the learned counsel for the respondents are on the point of law that the violation of MLR 64 can be adjudicated only by the Land Commission alone and not the Revenue Officers.
17. In the present case the main stance of the petitioner is that sale in favour of respondent/plaintiff was declared violative of MLR 64 but the question arose who declared the sale violative of MLR 64. It is the Assistant Collector acting under the Land Revenue Act who declared that the sale in favour of respondent/plaintiff to be in violation of MLR 64,the said order was set aside by the Additional Commissioner (Revenue) acting as appellate Court under the Land Revenue Act Lahore Division Lahore. The order of Additional Commissioner was no doubt, conditional and according to the petitioner it ceased to exist on expiry of six months when the respondent/plaintiff failed to construct the Rice Mill on the land in dispute, but both these orders were without jurisdiction as is held by Hon'able C Supreme Court of Pakistan as discussed above. As far as the question of maintainability of suit is concerned, the learned counsel for the respondent has relied on Mst. Arshan Bibi through.
Mst. Fatima and others v. Mulla Bakhsh (deceased) through Mst. Ghulam Safoor and others 2003 SCM R 318 and Ahmed Din v. Muhammad Shafi PLD 1971 SC 762. It is held by Hon'able Supreme Court of Pakistan that a party cannot be denied simply on the ground that consequential relief was not claimed. Natural result of declaration if succeed would be that consequential relief has to be given by the court even same was not claimed and court in such circumstances is D bound to call upon the party to amend the plaint to the extent of possession and direct him to pay the Court-fee.
18. The respondent has filed an application (C.M. No, 329-C/2007) under Order VI, Rule 17 read with section 151, C.P.C. Praying that he may be allowed to amend the plaint and amendment sought is as under:-- "Suit for declaration that the plaintiff is owner of Land measuring 55 Kanals, 7 Marlas and Mutation No,300 sale-deed registered on 1-1-1971 and subsequent Mutation No, 350/1 attested on 24-11-1979 are illegal, void and ineffective upon the rights of the plaintiff with consequential relief of possession."
19. Learned counsel for the petitioner vehemently Opposed this application and argued that it will change the complexion of the suit and further argued that it has been filed at a belated stage and its permission will amount to fill in the lacuna in the pleadings of the plaintiff which is not permissible in law. It is the duty of the respondent/plaintiff to seek all reliefs at the time of filing the suit. He relies on Order II, Rule 2, C.P.C. And submits that any relief claimed so if omitted by the respondent will be deemed to be omitted and as such the proposed amendment could not be allowed.
20. As the suit of the plaintiff cannot be thrown out only on the ground that possession has not been sought while filing the suit for declaration. My humble opinion in the circumstances of the case is that the respondent has successfully proved this case of declaration and as such if the amendment sought is not allowed, he will suffer due to fault of Court. It is a settled principle of law that application for amendment can be filed at any stage of the case even before the Hon'able Supreme Court of Pakistan and as such I accept this application and allow the petitioner to amend the plaint. As both the parties have concluded their evidence and it is also proved on record that prior to the cancellation of mutation in favour of respondent/plaintiff by the Assistant Collector the respondent was in possession of the suit land, hence, there is no need to remand the case to a civil court for fresh trial after amending the plaint. The application for amendment will be read as part of a complaint.
21. In view of above revision petition fails and is dismissed, the respondent/plaintiff is directed to pay court-fee of Rs, 15,000 within 30 days of the announcement of order, failing which the suit of respondent will be deemed to be dismissed. There is no order as to costs.